JOURNAL OF MEDICAL LAW AND ETHICS; VOL. 7, NR. 1, 75-95, PARIS LEGAL PUBLISHERS © 2019 Is Circumcision Unethical and Unlawful? A Response to Morris et al. J. Steven Svoboda Executive Director, Attorneys for the Rights of the Child Peter W. Adler Adjunct Professor of International Law at University of Massachusetts in Lowell, Massachusetts Robert S. Van Howe* Clinical Professor, Department of Pediatrics and Human Development, Michigan State University College of Human Medicine Abstract In 2016, we argued that non-therapeutic male circumcision before the age of consent is unethical and unlawful. In a response article published in 2018, Morris and colleagues sought to undermine our claims, raising a number of arguments that, we will demonstrate in the present essay, lack both logical and empirical support. The authors also advanced the unprecedented suggestion that physicians have an ethical duty to recommend male circumcision to parents. Here, we evaluate this novel suggestion and find it lacking. Indeed, as we will argue, the opposite is true: physicians are ethically proscribed from recommending and performing medically unnecessary surgery on healthy children, including the genitalia of both boys and girls. Moreover, boys have the same legal rights as girls under US and international law to bodily integrity and self-determination; parents’ constitutional rights do not extend to modifying their healthy children’s bodies; and even if parents had such rights, it is unlawful for physicians to circumcise healthy boys. Introduction In most countries around the world, physicians discharge healthy babies, both girls and boys, in a genitally intact condition: the condition * DOI 10.7590/221354019X15538518338616 2213-5405 2019 Journal of Medical Law and Ethics Journal of Medical Law and Ethics 2019-1 75 SVOBODA, ADLER AND VAN HOWE in which they were born.1 Moreover, they strictly avoid medically unnecessary surgeries – that is, surgeries that are not required to address an aberrant phys- ical state that poses a serious and immediate threat to the child’s welfare2 – on vulnerable infants and other non-consenting children. Physicians in the United States, however, continue to circumcise or surgically remove the healthy, functioning foreskin from the penises of more than 1 million boys per year.3 In 2012, the American Academy of Pediatrics (AAP) released a policy statement asserting, but not demonstrating,4 that the medical benefits of newborn circum- cision outweigh the associated risks, albeit not to a sufficient degree to justify recommending the procedure.5 In response, more than two dozen senior physicians from Europe and Canada, including heads and representatives of national medical bodies, wrote a response piece, contending that the AAP 2012 committee had failed in its duty to provide an unbiased evaluation of the litera- ture.6 The mostly European authors further stated that circumcision of healthy boys is neither medically nor ethically appropriate prior to the age of consent. The ethical and legal status of involuntary, non-therapeutic male circumcision remains a matter of great contention, and it is important for boys, and for the men they become, to resolve the debate surrounding this issue. In October 2013, J. Steven Svoboda, representing the non-profit human rights organization, Attorneys for the Rights of the Child, and Michael Brady, representing the 2012 American Academy of Pediatrics (AAP) Task Force on Circumcision, formally debated the issue in a public forum, leading to a pair of publications in the Journal of Law, Medicine, and Ethics in June 2016. Along with his co-authors, who also join on the present essay, Svoboda argued that 1 UNAIDS, “Neonatal and Child Male Circumcision: A Global Review”, Joint United Nations Program on HIV/AIDS (2010), 1-103. 2 For a definition of ‘medically necessary’ and a discussion of its ethical importance, see Brian D. Earp, “The Child’s Right to Bodily Integrity” in David Edmonds (ed.), Ethics and the Contem- porary World (Abingdon and New York: Routledge, in press), www.academia.edu/37138614/The_childs_right_to_bodily_integrity. 3 Bcheraoui et al., “Rates of Adverse Events Associated with Male Circumcision in U.S. Medical Settings, 2001-2010”, JAMA Pediatrics 168(7) (July 2014), 625-634. 4 See Brian D. Earp & David M. Shaw, “Cultural Bias in American Medicine: The Case of Infant Male Circumcision”, Journal of Pediatric Ethics 1 No. 1 (2017), 8-26. As these authors discuss, the AAP 2012 committee did not use any recognised method of assigning weights to individual benefits or risks, much less balancing them against each other. Instead, their assertion that the benefits outweigh the risks seems to have been an entirely subjective judgment based on the personal opinion of the 8 committee members, one of whom later revealed extra-scientific, political motivations on the part of the AAP committee to ‘protect’ the parental option to cir- cumcise in the face of growing legal challenges. See Andrew L. Freedman, “The Circumcision Debate: Beyond Benefits and Risks”, Pediatrics 137 No. 5 (6 April 6 2016), e20160594, https://doi.org/10.1542/peds.2016-0594. 5 American Academy of Pediatrics Task Force on Circumcision, “Circumcision Policy Statement”, Pediatrics 130, no. 3 (2012), 585-586. 6 M. Frisch, Y. Aigrain, Y. Barauskas et al., “Cultural bias in the AAP’s technical report and policy statement on male circumcision”, Pediatrics 131 (2013), 796-800. 76 Journal of Medical Law and Ethics 2019-1 IS CIRCUMCISION UNETHICAL AND UNLAWFUL? A RESPONSE TO MORRIS ET AL. circumcision is unethical and unlawful, while Brady argued the converse.7 Subsequently, the Australian circumcision advocate Brian Morris and three co- authors published a critique of our article (“the Critique”)8 contending that our main claims, supporting arguments and evidence are flawed. Because Morris has adopted by far the most extreme position in favor of circumcision in the contemporary literature, his views have been subjected to widespread criticism from mainstream commentators,9 often in the form of responses to his attemp- ted rebuttals. However, it is prohibitive to respond to every such rebuttal, since, as others have noted, they largely repeat claims and arguments raised in previous rebuttals that have already been addressed.10 In this case, however, a response does seem necessary given the importance of the subject matter – the health and human rights of vulnerable male children – and the extraordinary contention of Morris et al. in the Critique that physicians have an ethical duty to recommend male circumcision to parents. In this Reply, we address some of the main weaknesses in their position. Ultimately, we argue that circumcision of healthy boys before the age of consent violates the cardinal rules of biomedical ethics – autonomy, beneficence, non-maleficence, proportionality and justice – and that it is unlawful as well. Hence, there is no ethical duty to recommend such circumcision; rather, physicians are proscribed from offering to perform and from performing the procedure. I. The Role Of Rhetoric In Promoting Circumcision In this first section, we address a matter that is important for understanding the background and structure of this debate. Arguments about 7 M.T. Brady, “Newborn male circumcision with parental consent, as stated in the AAP circum- cision policy statement is both legal and ethical”, Journal of Law, Medicine & Ethics 44 (2016), 256-62; J.S. Svoboda, P.W. Adler & R.S. Van Howe, “Circumcision is unethical and unlawful”, Journal of Law, Medicine & Ethics 44 (2016), 263-82 (“Original Article”). 8 B.J. Morris, J.N. Krieger, J.D. Klausner & B.E. Rivin, “The ethical course is to recommend infant male circumcision – arguments disparaging American Academy of Pediatrics affirmative policy do not withstand scrutiny”, Journal of Law, Medicine & Ethics 45 (2017), 647-63 (“Critique”). The authors’ position is that male circumcision, especially when performed on an infant, is safe, prevents diseases and is not harmful (Critique at 656). 9 See, for example, J.A. Bossio et al., “Response to: The Literature Supports Policies Promoting Neonatal Male Circumcision in N. America”, Journal of Sexual Medicine 12 (2015), 1306; Science Media Centre, quoting Kevin Pringle, www.sciencemediacentre.co.nz/2014/04/04/circumcision- health-risks-and-benefits-experts-respond/ (downloaded 26 June 2018); and B. Donovan, “Review of ‘In favour of circumcision’ by Brian J. Morris”, Venereology 12 (1999), 68-69. Available at www.historyofcircumcision.net/index.php?option=content&task=view&id=64. 10 B.D. Earp, “The unbearable asymmetry of bullshit”, Health Watch 101 (Spring 2016), 4-5. Available at www.researchgate.net/publication/294584001_The_unbearable_asymmetry_of_bull- shit. M. Frisch, “Author’s response to: does sexual function survey in Denmark offer any support for male circumcision having an adverse effect?”, International Journal of Epidemiology 41(2012), 312-4. Available at: https://doi.org/ 10.1093/ije/dyr181. Journal of Medical Law and Ethics 2019-1 77 SVOBODA, ADLER AND VAN HOWE circumcision do not always rest on dispassionate evaluations of the best available evidence nor on fair-minded attempts to advance the discourse in the most productive way. Rather, as with other areas of science and medicine that touch on underlying disagreements about values, and here about religion as well, the debate has become polarized,11 even at times “uncivil”.12 Rhetorical strategies are sometimes used to press a position that goes beyond